Blanchard v. City of Birmingham et al

Filing 122

MEMORANDUM OPINION Signed by Judge Karon O Bowdre on 1/15/13. (SAC )

FILED
2013 Jan-15 PM 02:29
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
RODNEY BLANCHARD,
Plaintiff,
v.
CITY OF BIRMINGHAM, et. al.,
Defendants.

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CV-10-BE-2250-S

MEMORANDUM OPINION
This matter is before the court on “Defendant City of Birmingham’s Motion to
Reconsider the Denial of Judgment on the Pleadings or, Alternatively, Motion for Summary
Judgment.” (Doc. 103). For the reasons stated in this Memorandum Opinion, the court finds the
Motion to Reconsider is due to be GRANTED.
“[R]econsideration of an order is an extraordinary remedy and is employed sparingly.”
Rueter v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 440 F. Supp. 2d 1256, 1267-8 (N.D.Ala.
2006). Motions for reconsideration should not be a “‘knee-jerk reaction to an adverse ruling.’”
Id. (quoting Summit Medical Center of Alabama, Inc. v. Riley, 284 F. Supp. 2d 1350, 1355 (M.
D. Ala. 2003)). Neither should they be “a platform to relitigate arguments previously considered
and rejected.” Reuter, 440 F. Supp. 2d at 1268 n. 9. Rather, they should be “only available when
a party presents the court with evidence of an intervening change in controlling law, the
availability of new evidence, or the need to correct clear error or manifest injustice.” Summit
Medical Center, 294 F. Supp. 2d at 1355.

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In the instant case, the City does not argue that a change in controlling law intervened
some time after the briefing in this case. Neither does it present new evidence to support this
motion that was not available at the time of the summary judgment submission. Although the
City points to what it characterizes as errors of fact in the court’s Memorandum Opinion, all but
one of the errors of fact cited were those that the City admitted in its brief. The court recognizes
that after the summary judgment process, the City obtained additional counsel and that its new
counsel filed the Motion for Reconsideration. To the extent that its new counsel attempts a
second bite at the proverbial apple by disagreeing with the work performed by previous counsel,
the court does not find that tactic acceptable. Once a defendant admits certain facts, it cannot
hire new counsel and expect the court to wipe those admissions clean and start the summary
judgment process all over again. If this were appropriate, litigation would never end, because
litigants would keep hiring new counsel every time they received adverse rulings. The court
should not and will not reconsider facts previously admitted for summary judgment purposes. In
any event, the City has pointed to no evidence that was unavailable to the City the first go-round,
and the court will not reconsider these alleged factual errors. See, e.g., Richardson v. Johnson,
598 F.3d 734, 740 (11th Cir. 2010) (“A motion for reconsideration cannot be used to relitigate
old matters, raise argument or present evidence that could have been raised prior to the entry of
judgment.” ) (citation and internal quotations marks omitted and emphasis added).
The remaining proper ground for reconsideration is the need to correct clear error or
manifest injustice. Although the court will not reconsider the City’s arguments involving alleged
factual error, it does address the City’s arguments involving alleged legal error in applying the
law to the facts originally presented.
2

Blanchard claims that the City’s failure to train and supervise officers amounted to
deliberate indifference to the constitutional right of persons such as Blanchard to be free from
excessive force. As the City points out, the United States Supreme Court has instructed that
where “a plaintiff claims that a municipality has not directly inflicted an injury, but nonetheless
has caused an employee to do so, rigorous standards of culpability and causation must be applied
to ensure that the municipality is not held liable solely for the actions of its employee.” Board of
the County Comm’rs of Bryan Co. v. Brown, 520 U.S. 397, 405 (1997). Thus, “[o]nly where a
municipality’s failure to train its employees in a relevant respect evidences a ‘deliberate
indifference’ to the rights of its inhabitants can such a shortcoming be properly thought of as a
city ‘policy or custom’ that is actionable under § 1983.” City of Canton v. Harris, 489 U.S. 378,
388-89 (1989). To establish deliberate indifference to the rights of those citizens with which its
employees come into contact, a plaintiff must provide evidence that the City had notice of the
need to train and supervise in a particular area. Gold v. City of Miami, 151 F.3d 1346, 1351
(11th Cir. 1998). Addressing the crucial notice requirement, the Eleventh Circuit Court of
Appeals has explained that a sheriff’s department was not liable for the conduct of its employee
when the sheriff had no actual notice of the employee’s prior unconstitutional practices and “no
evidence of a history of widespread prior abuse ... put the sheriff on notice of the need for
improved training or supervision.” Wright v. Sheppard, 919 F.2d 665, 674 (11th Cir. 1990). The
Eleventh Circuit has acknowledged that “[t]his high standard of proof is intentionally onerous for
plaintiff; imposing liability on a municipality without proof that a specific policy caused a
particular violation would equate to subjecting the municipality to respondeat superior liability a result never intended by section 1983.” Gold, 151 F.3d at 1351 n. 10.
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The court is troubled by the evidence presented to the court regarding the conduct of
Birmingham police force officers, including the failure of a large number of police officers to
follow department policies and procedures in the Warren incident. However, upon
reconsideration of the evidence presented and reflecting on what a difficult standard a plaintiff
must meet to establish a municipality’s liability for conduct of its officers, the court finds that
Blanchard has not met that high standard of proof, and further, that summary judgment on this
claim should have been granted. Blanchard has presented evidence that a number of officers
failed to follow multiple Birmingham Police Department policies in the Warren incident.
However, the dismal mishandling of the Warren incident and the Police Chief’s recognition of
that mishandling does mean that this one incident put the City on notice of a need to train and
supervise its employees in a particular area and that it made a deliberate choice not to train and
supervise despite that need. See, e.g., City of Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985)
(explaining that “where the policy relied upon is not itself unconstitutional, considerably more
proof than the single incident will be necessary in every case to establish both the requisite fault
on the part of the municipality, and the causal connection between the ‘policy’ and the
constitutional deprivation.”); see also Ott v. City of Mobile, 169 F. Supp. 2d 1301, 1310-11 (S.D.
Ala. 2001) (finding four of 162 meritorious complaints about excessive force in the department
during a five-year-period was an insufficient number as a matter of law to create a genuine issue
of material fact as to the city’s notice of an unconstitutional pattern and practice).
Further, evidence exists of two prior sustained complaints of excessive force in 2007
against Hooper himself, occurring two years before the incident with Blanchard. However, the

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Supreme Court has cautioned that evidence about a particular officer’s shortcomings does not
alone provide evidence that the department’s training is faulty or that the training caused the
alleged constitutional violation at bar. As the Court explained:
That a particular officer may be unsatisfactorily trained will not alone
suffice to fasten liability on the city, for the officer’s shortcomings
may have resulted from factors other than a faulty training program ....
It may be, for example, that an otherwise sound program has
occasionally been negligently administered. Neither will it suffice to
prove that an injury or accident could have been avoided if an officer
had had better or more training, sufficient to equip him to avoid the
particular injury-causing conduct. Such a claim could be made about
almost any encounter resulting in injury, yet not condemn the
adequacy of the program to enable officers to respond properly to the
usual and recurring situations with which they must deal. And
plainly, adequately trained officers occasionally make mistakes; the
fact that they do says little about the training program or the legal
basis for holding the city liable.
City of Canton, 489 U.S. at 391. Any other approach would mean that cities would be held liable
on the basis of respondeat superior, a result that the Supreme Court specifically rejected in
Monell v. Dep’t of Social Servs. of City of New York, 436 U.S. 658, 693-94 (1978).
Blanchard also presents evidence about other unsustained reports of excessive force
regarding Hooper and other officers. The court notes that evidence of complaints of excessive
force, without further evidence that the complaints were valid, does not establish a pattern and
practice of the department officers using excessive force. See Brooks v. Scheib, 813 F.2d 1191,
1193 (11th Cir. 1987) (stating that “the number of complaints bears no relation to their validity”
and noting that the officer against whom a large number of complaints was lodged patrolled a
high crime area and that a large percentage of those he arrested were continually in trouble with
the law).
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In sum, the court finds that the evidence presented does not establish that the Birmingham
Police Department had notice of a need to train and supervise its officers regarding excessive
force and attendant reporting and discipline issues, that the City was deliberately indifferent to
that need, and that any failure to train caused the alleged violation of Blanchard’s constitutional
rights. Therefore, the court finds that the Motion for Reconsideration is due to be GRANTED as
to the failure to train claim and that, upon reconsideration, the City’s Motion for Summary
Judgment is due to be GRANTED on that claim.
Blanchard also claims that the Birmingham Police Department had a custom and practice
of turning a blind eye to the unconstitutional behavior of its officers when they used excessive
force, when they failed to discipline its officers for the use of excessive force, and when they
failed to report incidents of excessive force. In other words, Blanchard does not claim that the
official policies on use of excessive force and related reporting and discipline violated citizens’
constitutional rights but claims that the custom and practice in administering those policies did.
Although this claim of an unconstitutional custom and practice is different from the claim of
failure to train, the failure of Blanchard to present evidence of sufficient incidents to establish a
pattern and practice of the use of excessive force and related reporting and discipline and the
City’s notice about those problems similarly means that Blanchard has failed to prove the
existence of that custom and practice sufficient to withstand summary judgment. Therefore, the
court GRANTS the motion for reconsideration on this claim and, upon reconsideration, finds that
the motion for summary judgment is due to be GRANTED as to this claim.
As Blanchard asserts no further claims against the City, JUDGMENT is due to be entered
in favor of the City and against Blanchard as a matter of law. The court will proceed to trial with

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the claims against Defendant Hooper.
The court will enter a separate Order withdrawing the portions of its previous
Memorandum Opinion and Order that addressed the City’s Motion for Summary Judgment, and
also, consistent with this Memorandum Opinion, granting Summary Judgment for the City.
Dated this 15th day of January, 2013.

____________________________________
KARON OWEN BOWDRE
UNITED STATES DISTRICT JUDGE

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